Government concedes need for Snoopers’ Charter to protect rights in response to Tom Watson’s landmark legal challenge – but must go further

30 November 2017

Amber Rudd has today proposed changes to the new Investigatory Powers Act in response to successful legal claim brought by Tom Watson MP

But Government proposals only partially comply with landmark judgment

Tom Watson MP said:

“The current legislation fails to protect people’s fundamental rights or respect the rule of law. That’s what my legal challenge proved, and I’m glad Amber Rudd is making significant concessions today. But I will be asking the court to go further, because today’s proposals from the Home Office are still flawed.

“Ministers aren’t above the law – they don’t get to pick and choose which rights violations they address and they can’t haggle with the courts to avoid properly protecting people’s freedom. All of the fundamental safeguards demanded by the court must now be implemented.”

Martha Spurrier, Director of Liberty, said:

“It’s encouraging to see the Government acknowledge the need to fix a law that breaches people’s rights – but these plans are a cop-out.

“The Government has defined the ‘serious crime’ exception absurdly broadly – to include crimes punishable by only a few months in prison. It fails to propose the robust system of independent oversight that is so vital to protect our rights and ignores other critical changes demanded by the court.

“People in the UK deserve a surveillance law that keeps our country free and democratic – that protects our privacy, our freedom of speech, our right to protest and our free press. This is window dressing for indiscriminate surveillance of the public, when ministers should be getting on with making the law fit for purpose.”

Notes to editors

Today’s late concession comes more than three years after Mr Watson, represented by solicitors at Liberty, launched a legal challenge to the Data Retention and Investigatory Powers Act (DRIPA), the Investigatory Powers Act’s predecessor – and just a week before the final Court of Appeal hearing in his case.

In 2015, the High Court ruled that core parts of DRIPA were unlawful due to the lack of safeguards governing access to huge amounts of people’s personal data. The Government then took the case to the Court of Appeal – which referred it to the European Court of Justice (ECJ) for clarification.

In December 2016, the ECJ backed the original High Court ruling and decided that before citizens’ personal data is accessed there should be prior approval from a judge or independent body. It also ruled that retention of data was only acceptable for the purposes of dealing with serious crime, that people whose data had been obtained were entitled to be notified and that the data needed to be retained within the EU.

Today’s Home Office proposals are an admission that changes are urgently needed to rectify the rights violations highlighted by the ECJ – but the Government’s plans only partially address the safeguards fought for by Watson and now required by law. It disregards a significant part of the court’s ruling.

DRIPA was rushed through Parliament in a matter of days in 2014. It forced communications companies to store everybody’s “communications data” – detailed information about the locations of people using devices such as mobile phones, as well as the who, what, when, where and how of every email, text, phone call and internet communication, including those of lawyers, doctors, MPs and journalists.

Hundreds of organisations and government agencies, from police forces to HMRC, were able to grant themselves access to this highly personal and revealing data for a huge range of reasons that had nothing to do with investigating serious crime.

In 2015, the UK High Court backed Tom Watson’s argument that this lack of basic protections breached British people’s rights because it:

o Let police and public bodies grant themselves access, instead of requiring sign-off from a judge or independent body.

o Did not restrict access only to preventing and detecting precisely defined serious crime.

In December 2016, the ECJ supported the High Court’s judgment – but went much further. It also ruled the regime violated people’s rights because:

o It did not provide for people to be notified after their data had been accessed.

o It did not commit to the data being kept in the European Union.

Today’s Home Office proposals fail to properly address these latter two points.

DRIPA expired on 31 December 2016 – but the Government replicated and vastly expanded the same powers in the Investigatory Powers Act, which became law in 2016.

In a separate case, Liberty has launched a legal challenge to the most intrusive parts of the Investigatory Powers Act – and has been given permission to proceed with its challenge to Part 4, which replaces the specific data retention powers challenged in Tom Watson’s case.

Under this new Snoopers’ Charter, the UK intelligence agencies now have the ability to gather, store and access records on the entire population – including every person’s internet use, every website visited and app used.